State rejects former Swain DSS director’s appeal of firing

A wrongful firing claim by the former director of the Swain County Department of Social Services has been rejected by the state.

Tammy Cagle was fired three years ago amid a corruption probe of her agency by the N.C. State Bureau of Investigation. Cagle was not criminally charged in the probe, and the reasons for her dismissal were ultimately unrelated to it. Cagle claimed that she was fired as a “scapegoat” in light of the public outcry over the corruption allegations.

Cagle lodged an appeal with the N.C. Administrative Office of Hearings seeking her job back, as well as back pay. It was recently rejected by the state Administrative Hearing Officer, however, except for a token six months of back pay.

“It is my impression she is glad the case has concluded and wants to move on. It took a number of years to resolve. Litigation of any kind is draining on everybody involved,” said Michael Byrne, an attorney in Raleigh who represented Cagle.

The reason for Cagle’s firing was two-fold. One reason stemmed from a series of unorthodox and irregular handling of monetary assistance applications on behalf of Cagle’s family members. (See related article)

Another reason was Cagle’s communication with DSS employees about work-related matters, including the SBI investigation, while she was on investigative leave, despite instructions not to do so from the DSS board.

Incidentally, Cagle was not fired as a direct result of the SBI investigation. The timing, however, was apropos.

Cagle was put on paid leave shortly after the SBI corruption investigation was launched in February 2011, and then fired for good four months later — and so in the public’s mind, the two events have forever been linked.

But technically, the SBI probe was not the reason for Cagle’s dismissal. It did, however, play a role in why she was placed on investigative leave with pay in the first place.

The SBI was investigating an alleged cover-up by child welfare agents following the death of a Cherokee toddler while in the care of a relative. Family members had warned DSS that the relative caring for the toddler was unfit and suspected the toddler was a victim of severe neglect and possibly abuse.

After the toddler died, social service employees fabricated records to cover up any negligence on their part and make it appear that they had adequately investigated the allegations of neglect and abuse, according to police and court records.

Cagle has not been charged with any wrongdoing in connection with the cover-up, although two lower-level employees were. But law enforcement records suggested Cagle was initially among those being investigated for their “potential involvement in the cover-up,” according to the case file.

“The SBI indentified Cagle, along with one or more social workers, as, allegedly, participants in a meeting concerning the falsifications,” according to the wrongful firing case file.

When the SBI launched its investigation three years ago, Cagle was put on administrative leave with pay and instructed not to have any work-related communication with her former colleagues.

One concern was that Cagle’s “presence would have had the potential to intimidate agency employees from being forthcoming” during the investigation, according to the case file.

Additionally, “Placing [Cagle] on investigative leave with pay furthered the overarching concern about maintaining the community’s trust in the agency in the wake of the death of Aubrey Littlejohn and allegations of misconduct,” attorneys for Swain DSS contended in written arguments.

Forbidden calls

Cagle called her former colleagues at DSS on several occasions while on leave and tried to talk to them about the ongoing criminal investigation and her own pending performance evaluation.

Three employees documented their conversations with Cagle. Some of the conversations were merely agency gossip. But she also tried to interject in agency business, asked about the status of her employment investigation and talked about the criminal investigation, according to the case file.

Cagle denied this. She claimed that her former co-workers at DSS were longtime friends. She was not intending to talk about work, but brought up the SBI investigation simply because it was the talk of town.

“Her intent in making the calls was not to conduct business, but in essence to gossip with friends,” Cagle’s attorney stated in written arguments. “If the subject matter strayed into forbidden areas, it did so only in minor terms that did not obstruct the investigation.”

In her calls to Talmadge Jones, who was second in command at DSS under Cagle, Cagle twice warned him that DSS Attorney Justin Green was “turning against us,” according to Jones’ account of the conversation.

Jones immediately reported the conversations to the interim director of DSS, who had been brought in on a contract basis. The interim director told Jones to write up a summary of the conversations with Cagle.

In Jones’ written log of the phone conversations, he claimed that Cagle expressed concern that Green had turned against “them.”

Cagle said she had spoken to Green and “reminded him” that he had been present during a meeting following the toddler’s death where they talked about it being “a very serious case,” according to Jones’ account of his conversation with Cagle.

That meeting had also included Craig Smith, the child welfare caseworker who had been assigned to Aubrey Littlejohn’s case. Smith was later charged with doctoring records to cover up any possible negligence by DSS.

When Smith made a visit to Aubrey’s home to investigate an unexplained injury, he told Aubrey’s caretaker she must take Aubrey to the doctor to have the injuries checked out. The caretaker never did so, however, and Smith never followed up to find out. However, Smith fabricated a record showing that he had followed up with the doctor and claimed the checkup had occurred when in fact it had not, according to police reports and the criminal charges.

Apparently, Cagle had asked Smith about the doctor’s visit in a meeting following the toddler’s death — a meeting at which Green was allegedly present, according to Jones’ account of his phone conversation with Cagle.

Jones said Cagle told him in the phone conversation that she had “reminded” Green of what transpired at the meeting with Smith. Supposedly, when Cagle asked Smith “What would you say if you had to testify in court?” and Smith “stated that he ‘would swear on a stack of Bibles’ that he had spoken to the doctor at Cherokee Hospital,” so goes Jones’ summary of what Cagle told him that she’d told Green.

Cagle’s attorney later denied the veracity of Jones’ version of the phone conversations between him and Cagle.

Regardless, the Administrative Hearing judge said the assertion that Cagle was merely calling her longtime friends at the agency to gossip was “not credible” and that her discussions with them were about the very things the communication ban was supposed to head off.

“[Cagle] was well aware of the social and political uproar in the community over the Agency’s handling of the Littlejohn case, the impact the matter had on the trust bestowed on the agency by the public, and the media attention it drew,” the Administrative Hearing Judge wrote in his ruling.

The interim director of DSS brought in on a contract basis even issued a staff memo reminding employees if they talked to Cagle, not to talk about work matters.

Initially, the board noted two other performance issues during their performance review of Cagle while she was on leave. Those included:

• Getting a stipend for using her personal vehicle for work, during a period of time when she was actually using a county vehicle.

• Failing to pursue a Masters of Social Work degree as instructed by the board when hired as director in 2005.

But these two were ultimately jettisoned from the official reasons later given for Cagle’s firing.

Wrongful firing denied, back pay allowed

Cagle claimed the real motivation behind her firing was finding someone to take the fall given the uproar over the alleged cover-up and death of a toddler.

“[Cagle] denies any just cause for dismissal and alleges that she is being made the scapegoat for some issues with Swain County DSS that attracted widespread negative media attention,” according to Cagle’s suit.

Cagle’s attorney claimed the death of Aubrey Littlejohn “apparently caused a great deal of consternation and/or discussion in the Swain County community.”

In verbal testimony, Cagle had referred to the public backlash over the death of Aubrey Littlejohn as a “big to-do” in the community.

Cagle was represented by Attorney Michael Byrne out of Raleigh. Swain County DSS was represented by Attorneys Bill Cannon and Mike McConnell of Waynesville.

In her appeal, Cagle claimed that she was “dismissed without just cause” and sought reinstatement to her position, back pay and benefits and legal costs.

While the case was denied, the judge granted Cagle six months of pay and $5,300 in attorney’s fees.

The judge in the case found the DSS board did not adequately detail the reasons for her firing.

In a June 2011 letter to Cagle telling her she was fired, the DSS board failed to enumerate the specific instances when Cagle had violated the order not to contact DSS staff about work-related matters. It also failed to enumerate the specific instances in which she had acted inappropriately in signing off on benefits for family members.

While the judge found Swain DSS had just cause to fire Cagle, failing to itemize the grievances in her initial firing letter will cost Swain County about $37,000 in sixth months of back pay and legal fees for Cagle. It will come out of the county’s general fund, according to Swain County Manager Kevin King.

Checking in on the Aubrey Littlejohn case three years later

Three years ago, a Cherokee toddler mysteriously died while in the care of a relative. The trailer where she was living allegedly lacked a heat source. When she was brought to the hospital, her core body temperature was only 86 degrees, and she was dressed in a soiled diaper and T-shirt.

An autopsy report ruled her cause of death undetermined but noted it was not inconsistent with hypothermia.

The N.C. State Bureau of Investigation launched a probe into an alleged cover-up by Swain County DSS workers, who were accused of falsifying records to conceal possible negligence by the agency. The agency had been warned of unsafe living conditions, neglect and possible abuse by the toddler’s caregiver.

• Two lower-level employees were eventually charged with forgery for falsifying records and obstruction of justice. One of the two, Candice Lassiter, pleaded guilty to the forgery counts in 2013. The other, Craig Smith, has not been to court.

• Meanwhile, Aubrey’s caretaker, Ladybird Powell, was charged with second-degree murder in Aubrey’s death. But the largely circumstantial evidence against Powell would have made the charges difficult to prove at trial, so a plea bargain was reached for involuntary manslaughter in 2013. She was also convicted of extortion and felony child abuse. She is serving nine years in prison.

• A civil suit against the Swain County Department of Social Services was filed by the family of the toddler, Aubrey Kina-Marie LittleJohn. It is still pending.